Indonesia: Patent Law

 

Edited by GRAIN
February, 1998

History: There was no patent law in the country until 1989. Debate started in the early 1970s until a bill was completed in 1982 but did not make it to Parliament. "There had been a long and unending debate whether the patent system was really needed. Many people considered and believed that patent system contained more individualistic (and monopolistic) approach, which was seen as in total contradiction to the nation's way of life." (Kesowa 1996) The old bill was redrafted by the Presidential Commission on IPR in 1986 and Patent Law No. 6 was enacted in 1989 (effective 1 Aug 91). It was further amended on 23 March 1997 to conform with the WTO TRIPS Agreement.

Membership: WIPO, Paris, PCT

Admin: Directorate General of Copyright, Patent and Trademark, Department of Justice, Jln. Daan Mogot Km. 24, Tangerang 15119. Tel: (021) 5525386. Only 74 patent examiners.

Provisions until 1997: Unpatentable inventions as per Art 7 included: a. process or products of which the publication, use or implementation contravene the prevailing rules and regulations, public order or morality; b. processes or food and beverage products including products in the form of materials which have been through a chemical process for the purpose of producing consumable food or beverages for human beings and/or animals; c. new kinds or varieties of plants or animals, or any process whatsoever which may be used for the production of plants or animals as well as plant or animals products. Officially, the existence of these exceptions was "to protect the interests of the public. Food and beverage, including plant and animal varieties significant for the food supply, are a major aspect in the realisation of the people's welfare." [Explanation of the Law, cited in Tjahjadi, 1998]

Changes to conform to TRIPS: Indonesia ratified TRIPS in 1994 and quickly revised its patent law. The revisions (Patent Law No. 13) were approved by Parliament on 23 March 1997. Regarding exclusions, Art 7 (b) and (c) above have been deleted. Plants and plant varieties are now patentable in Indonesia, as are animals. According to the Explanation of the Law, Art 7(b) and 7(c) were deleted "based on the assessment that in order to fulfill the need for food which is very important for the people, research and development of inventions of technology capable of producing food, in large variety, amount, and quality, are urgently necessary and need to be encouraged." [Explanation of the Law, cited in Tjahjadi, 1998] Furthermore, the law is interpreted as allowing for the patentability of human genes and other genetic "inventions" involving the human body and identity. [Tjahjadi, 1998]

NGOs have protested these changes in the patent law, stating that the government has sacrificed national interests to an international regime which threatens food security and the environment in Indonesia. The Director-General of the Indonesian patent office publicly replied that while government passed the bill to appear compliant with the WTO TRIPS Agreement, it will refrain from adopting the regulations necessary for implementation until after 1 January 2000. [Tjahjadi, 1998] Use of patent system: Over 97% of all patents granted are held by foreigners.

Opposition possibility: Patent applications are published within six months of receipt and may be challenged during the next six months.

 

PLANT VARIETY PROTECTION

History: Activities are under way in the context of TRIPS to make a special law on Plant Varieties Protection. A draft has been completed and must be approved by Parliament. This will not happen until after the March 1998 Peoples' Assembly (presidential election).

Membership UPOV: Accession has been under preparation since at least 1996.

Main provisions: The draft PVP Act of September 1996 provides protection for varieties that are new, distinct, uniform and stable for all species and at least 20 years (various terms of protection per crop type). Protection may only be granted for varieties that are approved for use by the government. Aside from the research and farmers' exemption, a form of compulsory licensing is also foreseen to permit exploitation of varieties in the public interest and against payment of a reasonable fee.

 

ACCESS TO GENETIC RESOURCES

In 1995, Indonesia adopted Law No. 44, the Regulation on Plant Seed Management. It is mainly directed to ensure seed quality and provides guidelines for the import/export of seed as well as genebank management. It provides for a system of access to genetic resources under in-situ conditions for research and development purposes. How it will be applied to materials developed or controlled by farmers is not clear. For example, it provides the Government with unrestricted access to farmers' materials for State breeding purposes with or without compensation, depending on the case (Art. 12). Nothing is said about foreign breeding companies. Whether farmers have access to State germplasm collections in return is not established. Also, managing a "collection garden" as well as an ex-situ collection, requires mandatory registration (Art. 11) which NGOs criticise as undue bureaucratisation of community conservation which will only discourage farmers from maintaining biodiversity. It also provides awards to "inventors" of superior plant varieties without such award being intellectual property or other civil right (implementing regulation to Art 45).

The Government of Indonesia tends to cite this law as a partial answer to the provisions of CBD Art 15, but it is a very partial answer indeed. The Ministry of Environment is now drafting legislation on access to genetic resources in stricter conformity with Article 15 of CBD.

The Plant Cultivation Act of 1992 (see below) has provisions on collecting, but these are pre-CBD and only cover plants.

 

FARMERS' RIGHTS

The Indonesian National Committee on Plant Genetic Resources in collaboration with the Indonesian Biodiversity Foundation has been discussing Farmers' Rights in the national context. At their meeting in March 1997 they concluded that:

  1. Farmers' Rights are different from IPR.
  2. Farmers' Rights are communal rights that belong to farmers as a group in given localities.
  3. Compensation, as an expression of Farmers' Rights, cannot be reduced to certificates or funds. It should go further to address the welfare needs of farmers and imply improved access to education, housing facilities and social measures.
  4. To strengthen Farmers' Rights in the national context, Indonesia must assign a team to conduct further investigations. That being the case, the government is not in favour of legislating on Farmers' Rights. According to government sources, if Farmers' Rights is just a slogan to get funds from industrialised countries, that is not constructive. And if it is a social right to development, government officials say that Indonesia does not need legislation on that. And if forms part of human rights, the government still won't accept the need for action. [Soedarsan, 1997]

In the meantime, groups such as PAN Indonesia in collaboration with the World Food Day Farmers and Fisherfolk Movement, university-based researchers, farmers, NGOs and lawyers have also been analysing and trying to develop Farmers' Rights in the national context. At a meeting in November1997, "Toward the Recognition of Farmers' Rights/Traditional Community Rights", they finalised their assessment of national expectations directed to various parties, included to the government in the following terms:

  1. The government should deliberate with farmers before implementing any regulations or legal provisions on Farmers' Rights.
  2. The government should not oblige farmers to grow so-called high-yielding varieties -- farmers should have the full opportunity to cultivate local varieties.
  3. Crops resulting from breeding work must not be patented.
  4. Rights of the farmers to land and water for agricultural activities must be protected and sustained.
  5. Farmers must be given freedom for planting patterns based on their own decisions.
  6. The government should more put attention on the procurement and maintenance of irrigation facilities.
  7. Information on credit scheme by the government to farmers should be actively disseminated.
  8. Farmers should be involved in the price setting of agricultural commodities.
  9. Farmers must have rights to get the right information from related agencies.
  10. The government should repatriable local seed varieties that are stored in international genebanks.

 

OTHER LAWS

The Plant Cultivation System Law No 12 of 1992 set up a reward system for inventors or holders of plant varieties. Eleven of its 42 articles pertain to genetic resources. Its Art 55 says government may grant a reward to an inventor of a new or superior plant variety and that the inventor has the right to be named in his invention. Government may also grant a reward to a person or legal entity whose plant has certain superior qualities. In general, this law is concerned with the quality of plants for marketing purposes. No exclusive rights and no term of protection to the inventor are elucidated. This law was not accompanied by enabling legislation and was therefore never implemented.

Indonesia still does not have biosafety guidelines. They are in the process of being drawn up.

 

SOURCES

Emmawati Junus (Director of Patents), "Indonesian Patent System", Seminar on Patenting in ASEAN Countries, Singapore, 16-18 September 1996.

Bambang Kesowa (Vice-Chairman of the Presidential Commission on IPR), "Indonesia's Profile", APEC Industrial Property Rights Symposium, Tokyo, August 1996.

Nico Kansil (Director General, Directorate General Copyrights, Patents and Trademarks), "Protection of Intellectual Property Rights in Indonesia with Particular Reference to the Seed Industry", Seed Production and Marketing in Asia and the Pacific, Asian Productivity Organization, Tokyo, 1995.

Interview with Achmad Soedarsan, Chair, National Committee on Genetic Resources, Jakarta, 17 June 1997.

Badan Penelitian dan Pengembangan Pertanian, Rancangan Undang-Undang Perlindungan Varietas Tanaman, Jakarta, 16 September 1996 (draft Plant Variety Protection Act and Law 199, its implementing regulation) - Final Patent Act of 23 March 1997.

Soemaryatmo Kayatmo, "Industrial Property System in Indonesia", "Industrial Property System in Brunei Darussalam", ECAP Seminar on Intellectual Property in the ASEAN Countries, Brussels, 3 June 1997.

Regulation No. 44 of 1995, Regulation on Plant Seed Management, Jakarta.

Riza V. Tjahjadi, personal communications.

Riza V. Tjahjadi, Country Report: Situations for Assessing Sui generis Options, January 1998. This report provides an extensive and comprehensive overview of the intellectual property rights situation and debate in Indonesia, primarily as it relates to food and agriculture. Contact: Mr. Riza V. Tjahjadi, PAN Indonesia, Jl. Persada Raya No. 1 Palbatu, Menteng Dalam, Jakarta 12870. Tel/Fax: (62-21) 829 65 45. Email: biotani@rad.net.id

Further information about the situation in Indonesia can be obtained from: Mr Riza V Tjahjadi, PAN-Indonesia - Fax: (62-21) 8296545 or Email: biotani@rad.net.id